Archive for the ‘chapter 7’ Category

It should go without saying that, particularly in the legal arena, those who take part in proceedings before courts and tribunals need to feel that they have been treated equally.

This is, of course, easier said than done, as David Lammy’s report on the Criminal Justice System, published in 2017 showed. (See this blog 29 Sept 2017). But for many years first the Judicial Studies Board and now the Judicial College have offered guidance to judges (and by extension to others involved in the justice system) about the best ways to try to ensure that people are treated fairly.

Much of this focusses on the language that judges and others involved in the justice system use generally (for example in relation to litigants in person) and in relation to those from specific sectors of society, who may be defined by their religion, their ethnicity, their sexual orientation, mental or physical disabilities, their gender.

In February 2018, the Judicial College published an on-line updated revision to its ‘Equal Treatment Bench Book’. Bench books were originally devised as a handy guide to key issues which could sit on the judge’s desk, available for him to refer to it that seemed necessary.

I am not sure whether this particular Bench Book can be used in this way. For one thing, it is very long – well over 400 pages. And the issues raised are such that I would have thought judges would need to have considered them before a case or other proceedings have started. (It would not be desirable for a judge to stop in the middle of a sentence in order to look up how a particular person should be addressed.)

But I don’t agree, as some comments in the press have suggested, that the Equal Treatment Bench Book is an example of political correctness gone mad. It seems to me to be an honourable attempt to raise questions and address issues that arise in practice but that many judges may not have thought about before. (Indeed, I think there are some parts of the book that would be of interest to a wider readership.)

I set out the link to the text here, and invite readers to take a look at the Book and come to their own view on its value.

Hot on the heels of the announcement of on-line divorce applications (see this blog Feb 2 2018), information has just been published as a blog from HMCTS on developments relating to the digitalisation of procedures relating to public law childrens’ cases.

Emma Petty, Service Manager for the Public Law project, writes:

We want to make the public law process more efficient, ensuring the court, parties and their representatives have access to the right information at the right time to help decide the best outcomes for children involved in public law cases. Based on our early thinking, the aims of the project could be to:

provide an online application process which speeds up the gatekeeping process and shares information with partner agencies at the point of submission

improve the process for dealing with urgent applications

enable users to see the progress of their case and to take action to progress their case online

provide clear signposting to support available outside HMCTS, to assist parties acting in person and without a lawyer

enable users to upload and access documents and evidence digitally both outside and inside the courtroom

ensure suitable facilities and support are provided at hearing centres

enable hearings, where appropriate, to be conducted online

provide fast digital access to outcomes of hearings

ensure those who need it get the support they need to access our digital services.

Over coming months, the Public Law Project team will be working with practitioners and others involved in these types of case in developing practices and procedures to deliver these goals. This is an important development within the scope of the Transformation of the Justice System policy.

On January 30 2018 the Government announced that a fully online divorce application process is being tested across England and Wales for the first time. (It had been trialled in a small number of areas from 2017.)

The initial pilot allowed people seeking a divorce to use an online system which offered prompts and guidance to assist them in completing their application. But they still had to print off the form and send it to the court.

HM Courts & Tribunals Service (HMCTS) has now extended the service so that the application is now fully digital – submitting the form, sending the relevant documents, and payment. In the first week HMCTS received 130 online applications.

According to HMCTS the online system has drastically cut the number of applications being returned because of errors – showing a 90% improvement from paper forms. This is particularly important given the increasing numbers seeking a divorce without using a lawyer to help them.

Users of the new service seem to like it. It has already gained positive feedback with people welcoming the simplified, streamlined and easy to understand system which delivers their application instantly – without the worry of it being lost in the post.

The next stages will include making the system available for use by legal representatives. A date has not yet been publicly announced for this further development.

Experience in other contexts suggests that once up and running, use of on-line application procedures will increase very rapidly. Indeed, people will wonder why this development had not occurred years ago. This sort of development is at the heart of the Transformation of our Justice System reform programme.

2018 will witness the start of a new approach to dealing with the financial matters that can arise when married couples are divorced. The current President of the Family Division, Sir James Munby has set out his ambition that disputes about financial matters should be treated quite separately from the process of getting the divorce itself.

To this end, a series of pilots is being launched in February 2018 in which, in three trial areas of the country, financial matters will be dealt with by specially trained judges in a reduced number of family court hearing centres. The courts undertaking this work will be known generally as Financial Remedies Courts.

The new system will initially be operated on a trial basis in three areas of the country: London, the Black Country and South East Wales.

The President clearly hopes that expansion of the scheme to other parts of the country will take place rapidly.

In a recent Circular, Sir James wrote:

My core ambition for financial remedy work is to improve significantly both the application of procedural justice and the delivery of substantive justice.

Procedural justice will be bettered by the appointment of a cadre of specialist judges to the Financial Remedies Court (FRC) and by a process of early allocation of a case to the right judge at the right level at the right place, so as to ensure maximum efficiency. It will be bettered by the application and enforcement of standard directions and interim orders and by ensuring that FDRs (where the majority of cases settle already) are conducted with consistency, with sufficient time being allowed not only for the hearing but also for judicial preparation.

The delivery of substantive justice will be improved by an improved programme of judicial training; by the reporting of judgments in small and medium cases by the judges of the FRC to promote transparency and consistency; and by ensuring that sufficient time is allowed for the preparation and conduct of final hearings.

An increase in transparency will result in increased predictability of outcome, which in turn should lead to a higher rate of settlement or, for those cases that do not settle, a reduced rate of appeals.

Although initially hearings will be paper-based, it is intended that – in common with other changes being made in the justice system – there should be rapid moves to making the process an entirely digitised one.

These changes are being accompanied by another reform which has seen the introduction of many more standarised orders, which will be used by judges and avoid the need for parties or their legal advisers to draw up orders that then have to be approved by the judges. Sir James hopes this will particularly assist litigants in person.

This was the title of an extremely important and interesting lecture, given by Sir James Munby, President of the Family Court, to the Howard League for Penal Reform at the end of October 2017

What, it might be asked, was our leading family judge doing talking to those whose interest is in the criminal justice system?

Sir James used his lecture as an opportunity to argue for a new approach to the treatment of young people who come into contact with the criminal justice and penal systems. He sets out with admirable clarity what he sees as the main problems with current arrangements, including: the very complex set of institutions with which the young offender may come into contact; the huge variety of government departments – both central and local – charged with developing and delivering policy in relation to young offender; and the inconsistency of approach of different agencies towards how young offenders and their families should be dealt with.

Sir James argues that, in this context, family justice and criminal justice should be brought together. Specifically, he argues that the role of the Family Drug and Alcohol Court should be expanded to enable it to take on cases which are currently dealt with in the Youth Court.

He recognizes that such a development would represent a big policy change and could not come into being in the short-term. He therefore also proposes interim measures that might go someway towards meeting the objective he has outlined.

So far as I am aware,the Government is not currently contemplating such a major change, but I think Sir James offers ideas that should be carefully considered.

Despite the loss of the Prisons and Courts Bill 2017 at the General Election, held in June 2017, work on the Transforming our Justice System programme continues apace. (For those aspects of the reforms which need legislation, a replacement bill is expected shortly.)

Keeping up to date with the progress that has been made is hard, as most of the changes do not hit the headlines in the media. (About the only issue which has been subject to any public discussion has been criticism from the Bar about a pilot trialling the use of courts for longer periods during the day. The criticism focussed almost entirely on the inconvenience this would cause to barristers – no mention of the possibility that the public might prefer court hearings outside the traditional 10-4 Monday-Friday time frame.)

Specific developments can be noted by keeping an eye on Press Releases from the Ministry of Justice. A recent example is the announcement of the opening of the first two Courts and Tribunals Service Centres in Birmingham and Stoke on Trent

A more rolling source of news can be found in the extremely interesting blog relating to the transformation programme – now called Transformation: Courts and Tribunals 2022. This provides news about the new services that are being developed for modernising the courts and tribunals system, both giving accounts of what is currently on going and also what is planned.

In 2008, the then Labour Government announced its support for the concept of post-legislative scrutiny of legislation. It stated that “the basis for a new process for post-legislative scrutiny should be for the Commons committees themselves, on the basis of a Memorandum on appropriate Acts submitted by the relevant Government department, and published as a Command paper, to decide whether to conduct further post-legislative scrutiny of the Act in question.”

The Ministry of Justice has just (October 30 2017) published a post-legislative memorandum on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which it has sent to the Justice Select Committee. While much of the document seeks to explore the extent to which Government objectives in introducing the legislation have or have not been met, it also draws together a number of important other reports which have commented more critically on the effect of LASPO. These include, for example, the reports of the Low Commission, and the Bach Commission’s report on a Right to Justice (both noted in this blog). It also refers to other reports, e.g. from the National Audit Office, and the Equality and Human Rights Commission, and reports from a number of other Parliamentary Committees. It also notes how the Government has responded to a number of legal challenges that were made to LASPO. The response of the Justice Committee is not yet known.

Whether or not the Committee pursues its own post-legislative scrutiny, it is important to note that, in the memorandum, the Government confirms that in the course of the coming months it will undertake two more analytical reviews of aspects of LASPO, relating to,

the changes to the Legal Aid scheme, and

the changes to rules on the funding of litigation.

This will provide an opportunity for critics of LASPO to make their arguments and might lead to further thought being given to the ideas set out in the Low and Bach Commissions’ reports.

It will also provide the opportunity to reflect on the changes resulting from Lord Justice Jackson’s review of Costs and his 2017 Supplementary Report (also noted in this blog).